Are we not entitled as American citizens to expect U.S. based social web empires like Twitter, Instagram, Facebook, YouTube, etc., to let us determine for ourselves what is factual and what is not as we consume content over the web? Conversely, are American content providers and private citizens on social media not entitled to free speech and free press on these platforms?

These two questions are tightly coupled so I've dared to ask them together in one post.

I can certainly agree that allowing video on YouTube displaying a man's execution is very distasteful and inappropriate for public audiences, and that dangerous bomb-making instructions ought not be generally disseminated over public venues like Wikipedia.

But simple differences of opinion in regards to government and public policy are frequently being censored lately right in front of our eyes over these channels. It could be a potential conspiracy theory for all I care! Is it constitutional for Silicon Valley's own Facebook to censor a post and chalk it up to "independent fact-checking"? What I see happening here instead is that this social channel is actively crushing dissent.

Here's a sample of censored video journalism someone posted recently on Facebook (whose content I don't wish to promote, so I've blurred it). Just as I came to watch it, the video stream was shut off on account that it was supposedly, "Partly False". Today, you try to visit the link and it won't even appear. There was nothing violent in it, and nothing explicitly sexual. It was simply an interview with a controversial figure about a controversial subject. Yet this was censored: enter image description here

Is all this social media censorship a violation of our constitutional rights or not?


4 Answers 4


You have the right to look for other news sources.

"Free speech" is about the government restrictions or compulsions, and the First Amendment was originally about Congress alone. (The Fourteenth Amendment has been interpreted as extending those First Amendment protections to cover actions by state and local governments.)

It's important to remember that "freedom of the press" includes the right to not publish. Compelling someone to say something they disagree with is just as much a First Amendment violation as forbidding them to speak is.

  • 4
    Or even to start your own social media platform.
    – jamesqf
    May 14, 2020 at 5:32

Are we not entitled as American citizens to expect U.S. based social web empires like Twitter, Instagram, Facebook, YouTube, etc., to let us determine for ourselves what is factual and what is not as we consume content over the web?

You're free to expect it, but you're going to be disappointed. That's because:

Conversely, are American content providers and private citizens on social media not entitled to free speech and free press on these platforms?

Absolutely not. The First Amendment restricts government action, not private action. For instance, in Manhattan Community Access Corp v. Halleck, the Supreme Court held that "The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors." The Court went on to say that

Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances — including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U. S., at 352–354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U. S. 922, 941–942 (1982).

Manhattan Community Access involved a private corporation that was designated by New York City to administer public access channels as part of a franchise agreement between the city and Time Warner Cable. Public access channels were required by NY state law, and the state law heavily regulated how those channels must be operated. Local governments had a role in this: the cable operator would normally operate the public access channel, but the local government could instead decide to run it or could designate some private entity to run it.

Despite all this government involvement, the Court held that MCAC was not a state actor when deciding what to show. Running a forum for people to speak is not traditionally an exclusive state function. The dispute turned on whether the public access channel was itself city property that MCAC was running on behalf of the city (running a city-owned public forum on behalf of the city is considered state action), and even with such a close relationship the Supreme Court held that it was not.

Turning to private social media, it has far less connection to the government than MCAC did. MCAC was officially designated by the city to operate a channel that state law explicitly designated as a public forum. Facebook and Twitter are not. Their actions are based on their own interests; they aren't administering their sites on behalf of the government. They are not state actors, and the First Amendment doesn't apply to them.


The trivial answer is "none". As other answers have noted, corporate social media is not the US Government. The US Government usually has no statutory power within corporate media to either prevent corporate censorship or compel corporate editing.

However, this easily answered question implies a thornier one: if ever a handful of large and powerful multinational corporations should hold a de facto virtual media monopoly or actual media oligopoly over the means of public communication, the results could at worst be all too similar to government censorship, but without any of the accountability typical of a democratic society.

That is, if we imagine for the sake of argument that the USA appointed an "Official Media Censor" who abused their office, aggrieved citizens might "vote the bums out" -- with corporations this option doesn't exist.

On the flip side, corporations need money, and media corporations need eyeballs, so citizen consumers in a capitalistic society at least have the option of looking elsewhere, and spending their dollars on whatever smaller forms of media exist that are more to their liking. Unlike with government censorship, buying an unpopular dissident magazine (usually) won't get the buyer thrown in jail.


As other answers pointed out, the US constitutional law clearly applies to government entities, not private sector corporations.

One might ask interesting questions about those companies trying to "have their cake and eat it, too" by claiming both the right to sort, alter, or suppress user content on their own sites, and a near-total lack of responsibility for the content generated by their users.

  • A newspaper is free to write what they want, subject to libel laws etc. They're also responsible for what they publish.
  • A telephone company is not held responsible for the content of speech over their lines. They do not control the content, either.
  • A social media company claims the immunity of a telephone company with the editorial control of a newspaper.

But the situation right now is both legal and constitutional, because the Constitution was written long before the internet and laws have exceptions which treat social media platforms like telecommunication providers. Changing the US Constitution is a rather impractical proposition.

One might also ask about problems of monopolies/oligopolies in the social media market and the need to apply anti-trust laws, but that's another can of worms.

  • 3
    “possibly because most laws and especially the Constitution were written long before the internet.” The law explicitly giving them immunity even if they curate their content was written in the 1990s and is exclusively about the Internet. Off the Internet, there’s a link between curation and liability. Online, Congress explicitly broke that link and said “you can try to keep your site from being 4chan without being liable for everything anybody posts.”
    – cpast
    May 14, 2020 at 4:43

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